The United States Court of Appeals for the First Circuit has certified the following questions to this court, pursuant to S.J.C. Rule 1:03, as appearing in 382 Mass. 700 (1981):
Nett v. Bellucci, 269 F.3d 9 (1st Cir. 2001). We answer the certified questions as follows: (1) The operative date for commencement of an action for purposes of a statute of repose is the date of filing of a motion for leave to amend a complaint to add a party; and (2) the policies underlying the statute of repose do not require that the motion for leave to amend comply with the local rules, as long as the motion itself is accepted for filing within the period provided by the statute of repose.
1. Facts. We summarize the facts as set forth in the opinion accompanying the certification order, augmented by details provided in the record of the underlying proceedings. See Nett v. Bellucci, 269 F.3d 1, 2-5 (1st Cir. 2001). Aaron Nett was born at Milford-Whitinsville Hospital on April 2, 1992, weighing more than eleven pounds. The delivery was complicated because of Aaron's large size, and the infant suffered a nerve injury as a result of those complications. On March 26, 1992, one week prior to Aaron's birth, Dr. Peter Gross had performed and interpreted an ultrasound, estimating the fetal weight at only eight pounds. Dr. Mitchell Bellucci, the obstetrician attending Aaron's delivery, had relied on that ultrasound reading and had therefore not anticipated the complications that ensued during the delivery of a much larger baby.
On April 30, 1996, the plaintiffs filed a complaint against Dr. Bellucci in the United States District Court for the District of Massachusetts, alleging that he had been negligent in the prenatal care and delivery of Aaron. As part of his defense, Dr. Bellucci took the position that he had reasonably relied on the estimated fetal weight provided by the radiologist's ultrasound reading, and that his failure to anticipate delivery of a baby weighing eleven pounds was therefore not negligent.
On June 30, 1998, the plaintiffs served a subpoena duces tecum on the hospital seeking production of the ultrasound
On March 10, 1999, after obtaining an expert's review of the films and an opinion concerning their proper reading, the plaintiffs filed a motion for leave to amend their complaint to add Dr. Gross as a defendant pursuant to Fed. R. Civ. P. 15 (a).
When they filed their motion, the plaintiffs failed to comply with Massachusetts District Court Local Rule 15.1 (b), which
After the plaintiffs themselves realized their error, they served Dr. Gross with the motion for leave to amend on March 19, 1999, and refiled their motion with the court on March 29, 1999, in compliance with local rule 15.1 (b). Over the opposition of Dr. Gross, the court granted the plaintiffs' motion for leave to amend on April 8, 1999, and the amended complaint was filed on April 26, 1999.
Dr. Gross filed a motion to dismiss the amended complaint, arguing that the plaintiffs' claims against him were barred by the statutes of repose.
The Federal District Court initially denied the motion to dismiss. The court determined that the repose period expired on March 26, 1999, rather than April 2, 1999, but excused the violation of local rule 15.1 (b) as harmless error, deemed the motion for leave to amend to have been properly filed on March 10, 1999, and tolled the time that had elapsed between the filing of the first motion for leave to amend and the filing of the amended complaint. On a motion for reconsideration, however, the court reversed itself, concluding that a statute of repose could not be tolled in light of Protective Life Ins. Co. v. Sullivan, 425 Mass. 615, 631 n.19 (1997), and cases cited. Because the plaintiffs had not filed their amended complaint prior to March 26, 1999, the claims against Dr. Gross were dismissed.
On appeal to the United States Court of Appeals for the First Circuit, the plaintiffs were unsuccessful in pressing their theory that the statutes of repose ran from the child's birth date. See Nett v. Bellucci, 269 F.3d 1, 6 (1st Cir. 2001). The March 26, 1999, seven-year anniversary of the ultrasound reading was held to be the applicable date for purposes of the statutes of repose, and both the March 29, 1999, motion for leave to amend, and the later April 26, 1999, filing of the complaint, fell outside that repose period. The question, then, was whether the March 10, 1999, filing of a motion for leave to amend qualified as the "commencement" of the action against Dr. Gross for purposes of the statutes of repose. Because the case was a diversity action, State law determined when the action was "commenced" for purposes of statutes of limitations or statutes of repose. Id. at 7, citing Walker v. Armco Steel Corp., 446 U.S. 740, 751 (1980). Finding "no controlling precedent on the question of
2. Commencement of an action. The first certified question asks us to determine, for purposes of our statutes of repose, what step in the proceedings constitutes the commencement of an action against a party who is added by way of amendment to the complaint. Both the statute governing medical malpractice tort claims involving minors, G. L. c. 231, § 60D, and the statute governing medical malpractice tort claims generally, G. L. c. 260, § 4, provide that "in no event shall any such action be commenced more than seven years after occurrence of the act or omission which is the alleged cause of the injury upon which such action is based" (emphasis added). Like all statutes of repose, "[t]he effect [of these statutes] is to place an absolute time limit on the liability of those within [their] protection and to abolish a plaintiff's cause of action thereafter, even if the plaintiff's injury does not occur, or is not discovered, until after the statute's time limit has expired." McGuinness v. Cotter, 412 Mass. 617, 622 (1992), citing Klein v. Catalano, 386 Mass. 701, 702 (1982). Unlike statutes of limitation, statutes of repose may not be "tolled" for any reason, as "tolling" would deprive the defendant of the certainty of the repose deadline and thereby defeat the purpose of a statute of repose. See Protective Life Ins. Co. v. Sullivan, supra at 631 n.19, citing Sullivan v. Iantosca, 409 Mass. 796, 798 (1991). The only way to satisfy the "absolute time limit" of a statute of repose is to "commence" the action prior to the expiration of that time limit. McGuinness v. Cotter, supra. See Aldrich v. ADD Inc., ante 213, 221 (2002).
The medical malpractice statutes of repose do not define when an action "commences." Ordinarily, we would look to our rules of civil procedure to determine the date on which an action is "commenced," and, under the straightforward provisions of those rules, we would find that amended pleadings adding or substituting a party, where the claims asserted against the new party arise out of the same conduct, transaction, or occurrence set forth in the original pleading, "relate back" to the date of the original pleading. See Mass. R. Civ. P. 15 (c), 365 Mass. 761
However, we have already determined that that literal application of the rules would be contrary to the purposes underlying a statute of repose, and have thus, for statute of repose purposes only, rejected the date of commencement that the rules normally prescribe for related claims and parties added by amendment. Tindol v. Boston Hous. Auth., 396 Mass. 515, 519 (1986). In that case, we held that a plaintiff could not amend a complaint to add an architect and an engineer as defendants after the expiration of the repose period imposed by G. L. c. 260, § 2B — a statute of repose governing torts related to construction projects — even though the original complaint was timely filed. See id. We fashioned an exception to rule 15 (c), explaining that to allow amended pleadings for claims subject to a statute of repose to relate back to the original pleading "would have the effect of reactivating a cause of action that the Legislature obviously intended to eliminate." Id., quoting James Ferrera & Sons v. Samuels, 21 Mass.App.Ct. 170, 173 (1985). Thus, where the literal application of one of our rules of civil procedure would yield a result contrary to the purposes underlying statutes of repose, we refused to recognize the date of commencement provided by the rules.
Because rule 15 (c) cannot operate in these circumstances to establish the date of commencement as the date of filing of the original complaint, the defendant contends that we should instead apply the literal wording of Mass. R. Civ. P. 3, as amended, 385 Mass. 1215 (1982), which provides in pertinent part that "[a] civil action is commenced by (1) mailing to the clerk of the proper court by certified or registered mail a complaint and an entry fee prescribed by law, or (2) filing such complaint and an entry fee with such clerk." Under the defendant's reading of the rule, the plaintiffs did not "commence" their action until they filed their amended complaint on April 26, 1999, one month after the expiration of the repose period.
The defendant's argument applies rule 3 to a context it was not meant to govern. Because rule 15 (c) provides its own
The original filing of a complaint that "commence[s]" an action under rule 3 is the first document that a plaintiff files in court, comprising the first official step in bringing an action against a defendant. No prior permission of the court is required, and no prior step involving the court need be taken. As such, the plaintiff has unilateral control over when the original complaint is filed, and the plaintiff is responsible for seeing to it that that step "commenc[ing]" the action occurs within all applicable statutes of limitation and statutes of repose.
What step in the process of amending a complaint most resembles that first step in the filing of an original action? Beyond the brief period during which a complaint may be amended as of right (see rule 15 [a]), a plaintiff amending a complaint may not do so unilaterally. Court permission is required. Therefore, the first step taken is to request permission from the court by filing a motion. While the plaintiff has unilateral control over when that motion is filed, the plaintiff has no way of controlling or even predicting the time at which any permission to amend will be granted, and thus no ability to control the date on which the amended complaint itself may be filed. It may take only a matter of days before the motion is allowed and the complaint can be filed, but it may be a matter of weeks, or even months, depending on a host of factors, all of which are outside the plaintiff's control. If the statute of repose
It is true that a plaintiff retains the ability to satisfy the statute of repose by filing a separate action against the new defendant, perhaps followed by a motion to consolidate that new action with the previously filed action. See Mass. R. Civ. P. 3; Mass. R. Civ. P. 42 (a), as amended, 423 Mass. 1402 (1996).
We conclude that treating the filing of the motion as the commencement of the action against the added defendant would satisfy the purposes underlying statutes of repose. The purpose of a statute of repose is to give particular types of defendants the benefit of a date certain on which their liability for past conduct will definitively come to an end. "There comes a time when [a defendant] ought to be secure in his reasonable expectation that the slate has been wiped clean of ancient obligations, and he ought not be called on to resist a claim `when evidence has been lost, memories have faded, and witnesses have disappeared.'" Klein v. Catalano, 386 Mass. 701, 709 (1982), quoting Rosenberg v. North Bergen, 61 N.J. 190, 201 (1972). The Legislature has decided that the uncertainties inherent in statutes of limitation, which run from the unpredictable and theoretically never-ending date on which a cause of action can "accrue,"
Nor would there be any difference in terms of notice to the defendant. Statutes of repose require only that an action be
Treating the filing of the motion to amend as the "commencement" of the action will give a defendant at least equally prompt notice, and will therefore not result in upsetting any "reasonable expectation" that liability has terminated. Id. Here, the defendant was served with the motion to amend, and was informed that it had been filed with the court, prior to the expiration of the statute of repose. Local rule 15.1 (b) requires that the motion to amend be served on the proposed defendant prior to the filing of the motion, a rule that guarantees service on the defendant prior to the expiration of the statute of repose, without even the slight flexibility for service provided by rule 4 (j). See note 8, supra. In other words, whereas timely commencement of an action by the filing of the complaint does not necessarily translate into notification to the defendant until sometime after the expiration of the repose period, the requirement of prior service under the local rule ensures notification prior to the expiration of the repose period. With that notice and filing, such a defendant is made aware, within the repose period, of the fact that the plaintiff is bringing suit for the alleged prior conduct. As of the time of that notice and filing of the motion, a defendant has not yet become entitled to any "reasonable expectation that the slate has been wiped clean." Klein v. Catalano, supra at 709.
We find considerable supporting authority in other jurisdictions, which (in the absence of any "relation back" provisions) take the position that the filing of the motion to amend, not the court's later ruling on that motion or the even later filing of the complaint following allowance of that motion, is the date on which the new action is commenced.
These cases note the injustice that would flow from refusing to recognize the motion itself as the commencement of the new action. "[The] plaintiff's amended complaint was effectively filed when his motion for leave to file an amended complaint was filed .... To hold otherwise would punish [the] plaintiff and other similarly situated plaintiffs for the court's unavoidable delay in issuing an order granting leave to amend a complaint." Wallace v. Sherwin Williams Co., supra at 159. If a plaintiff could not "commence" an action by way of amended complaint without first awaiting the court's ruling on the motion to amend, "[t]he matter is out of the hands of the plaintiff and is controlled
Some courts considering this issue have reached the same result, but have referred to the filing of the motion to amend as a "tolling" of the operative statute of limitations.
The defendant acknowledges this extensive precedent treating the filing of the motion to amend, not the later filing of the allowed amended complaint, as the operative date, but contends
In many, but not all, of the cases cited above, the motion to amend was accompanied by a draft of a proposed amended complaint, as that is the customary practice in filing such motions.
We emphasize that our interpretation in no way derogates from our strict approach to statutes of repose. Notwithstanding compelling equitable considerations, statutes of repose are not tolled. Protective Life Ins. Co. v. Sullivan, 425 Mass. 615, 631
3. Noncompliance with local rules. Having concluded that the filing of a motion to amend commences an action for purposes of a statute of repose, the next certified question asks whether the policies underlying the statutes of repose demand strict enforcement of local rules of court applicable to filing a motion for leave to amend, or whether those policies permit the court in its discretion to excuse noncompliance.
As discussed above, a statute of repose is satisfied as long as a motion for leave to amend a complaint, either describing the action being brought or attaching a proposed amended complaint, has been filed within the period provided by the statute of repose. In this case, the clerk apparently accepted the plaintiffs' motion for filing on March 10, 1999, notwithstanding the lack of a certificate of service in accordance with local rule 15.1 (b). While the failure to comply with that local rule would presumably constitute grounds for the clerk to reject the filing, or for the judge to strike the motion, the decision to excuse the noncompliance with local rules applicable to the filing of motions to amend does not implicate the policies underlying the statutes of repose. By way of analogy, if the filing of an original complaint failed in some manner to comport with a local rule but, notwithstanding that failure, was filed with the clerk on a particular day, the action would be "commenced" on that day under rule 3. A party who fails to comply with a local rule concerning the filing of a complaint or a motion always runs the risk that that filing may be rejected by the clerk, or struck at some later date, or that the violation may result in some other, adverse consequence, but if the filing is accepted and not struck, the filing date remains as the operative date for purposes of compliance with a statute of repose.
The Reporter of Decisions is to furnish attested copies of this opinion to the clerk of this court. The clerk in turn will transmit one copy, under the seal of this court, to the clerk of the United States Court of Appeals for the First Circuit, as the answers to the questions certified, and will also transmit a copy to each party.